Summary
Although it now covers more than court proceedings, the definition of perjury has not changed a great deal otherwise since the framing of the Constitution. Blackstone described it as "a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely and falsely, in a matter material to the issue or point in question."
Perjury Under Federal Law:
A Sketch of the Elements
Charles Doyle
Senior Specialist in American Public Law
November 5, 2010
Congressional Research Service
7-5700
www.crs.gov
98-807
CRS Report for Congress
Prepared for Members and Committees of Congress
Perjury Under Federal Law: A Sketch of the Elements
Summary
There are three general federal perjury laws. One, 18 U.S.C. 1621, outlaws presenting material
false statements under oath in federal official proceedings. A second, 18 U.S.C. 1623, bars
presenting material false statements under oath before or ancillary to federal court or grand jury
proceedings. A third, 18 U.S.C. 1622 (subornation of perjury), prohibits inducing or procuring
another to commit perjury in violation of either Section 1621 or Section 1623.
A closely related
fourth law, 18 U.S.C. 1001 proscribes material false statements in any matter within the
jurisdiction of a federal agency or department. Moreover, regardless of the offense for which an
individual is convicted, his sentence may be enhanced as a consequence of any obstruction of
justice in the form of perjury or false statements for which he is responsible, if committed during
the course of the investigation, prosecution, or sentencing for the offense of his conviction. The
enhancement may result in an increase in his term of imprisonment by as much as four years.
In most cases, the courts abbreviate their description of the elements and state that to prove perjury in a judicial context under Section 1623 the government must establish that the defendant "(1) knowingly made a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to any court or grand jury of the United States."
In a similar manner, the courts generally favor the encapsulation from United States v. Dunnigan to describe the elements of perjury in other contexts under Section 1621: "A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory."
Section 1622 outlaws procuring or inducing another to commit perjury: "Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned for not more than five years, or both," 18 U.S.C. 1622.
The false statement statute, 18 U.S.C. 1001, is closely akin to the perjury statutes. It outlaws false statements in any matter within the jurisdiction of a federal agency or department, a kind of perjury not under oath.
Moreover, regardless of the offense for which an individual is convicted, the federal sentencing guidelines may call for his sentence to be enhanced as a consequence of any obstruction of justice in the form of perjury or false statements for which he is responsible, if committed during the course of the investigation, prosecution, or sentencing for the offense of his conviction. The enhancement may result in an increase in his term of imprisonment by as much as four years.
This report is an abbreviated version of CRS Report 98-808, Perjury Under Federal Law: A Brief
Overview, by Charles Doyle Overview, by [author name scrubbed], stripped of most footnotes, quotations, citations, and bibliography.
Congressional Research Service
Perjury Under Federal Law: A Sketch of the Elements
Contents
Introduction ................................................................................................................................1
Perjury Under 18 U.S.C. 1623.....................................................................................................1
Perjury Under 18 U.S.C. 1621.....................................................................................................3
Subornation of Perjury ................................................................................................................4
False Statements (18 U.S.C. 1001) ..............................................................................................4
Perjury as a Sentencing Factor (U.S.S.G. §3C1.1)........................................................................6
Contacts
Author Contact Information ........................................................................................................7
Congressional Research Service
Perjury Under Federal Law: A Sketch of the Elements
Introduction
Perjury Under Federal Law: A Sketch of the Elements
Introduction
Although it now covers more than court proceedings, the definition of perjury has not changed a
great deal otherwise since the framing of the Constitution. Blackstone described it as
“"a crime
committed when a
lawfullawful oath is administered, in some
judicialjudicial proceeding, to a person who
swears
willfullywillfully, absolutely and
falselyfalsely, in a matter
materialmaterial to the issue or point in question.
”
"
Perjury Under 18 U.S.C. 1623
“
Congress enacted
§Section 1623 as part of the 1970 Organized Crime Control Act
"to facilitate perjury
prosecutions and thereby enhance the reliability of testimony before federal courts and grand
juries.
”" It nevertheless embodies most of the same basic perjury elements (stripped of some of the
technical requirements) and carries the same penalties as the more traditional Section 1621.
Parsed into elements, it declares that
:
I. Whoever
II. a. under oath or
b. in any
i. declaration,
ii. certificate,
iii. verification, or
iv. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States Code
III. in any proceeding before or ancillary to
a. any court or
b. grand jury of the United States
IV. knowingly
IV. knowingly
V. a. makes any false material declaration or
b. makes or uses any other information, including any
i. book,
ii. paper,
iii. document,
iv. record,
v. recording, or
vi. other material,
knowing the same to contain any false material declaration, shall be fined under this title
or imprisoned not more than five years, or both, 18 U.S.C. 1623(a)(enumeration added).
In most cases, the courts abbreviate their description of the elements and state that to prove
perjury the government must establish that the defendant
“"(1) knowingly made a (2) false (3)
material declaration (4) under oath (5) in a proceeding before or ancillary to any court of grand
jury of the United States.
”
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Perjury Under Federal Law: A Sketch of the Elements
"
The forum for the allegedly perjurious declaration must be a
“"proceeding before or ancillary to
any court or grand jury of the United States.
”" An interview in an attorney
’'s office in preparation
for a judicial hearing cannot be considered such an ancillary proceeding, but the phrase
“ "proceedings ancillary to
”" court or grand jury proceedings does cover proceedings to take
depositions in connection with civil litigation, as well as a variety of pretrial proceedings in
criminal cases, including bail hearings, venue hearings, or suppression hearings.
The Supreme Court
’'s observation that a statement that is misleading but literally true cannot
support a conviction under Section 1621 because it is not false, applies with equal force to perjury
under Section 1623. Similarly, perjury cannot be the product of confusion, mistake, or faulty
memory, but must be a statement that the defendant knows is false, although this requirement
may be satisfied with evidence that the defendant was deliberately ignorant or willfully blind to
the fact that the statement was false. On the other hand, a defendant cannot be guilty of perjury
for a truthful answer to a reasonable interpretation of an ambiguous question.
Materiality is perhaps the most nettlesome of perjury
’'s elements. It is usually said that a statement
is material
“"if it has a natural tendency to influence, or is capable of influencing, the decision of
the decisionmaking body to whom it is addressed.
”" This definition is not easily applied to false
statements made in civil depositions. In such cases, one appellate court has recently described the
lower federal courts as divided between the view (1) that a statement in a deposition is material if
a “ a "truthful answer might reasonably be calculated to lead to the discovery of evidence admissible
at the trial of the underlying suit
”" and (2) that a statement is material
“"if the topic of the statement
is discoverable and the false statement itself had a tendency to affect the outcome of the
underlying civil suit for which the deposition was taken.
”" In any event, a statement is no less
material because it did not or could not divert the decisionmaker.
Subsection 1623(c) permits a perjury conviction simply on the basis of two necessarily
inconsistent material declarations rather than a showing that one of the two statements is false.
Conviction does require showing, however, that the two statements were made under oath; it is
not enough to show that one was made under oath and the other was made in the form of an
affidavit signed under penalty of perjury. Moreover, the statements must be so inherently
contradictory that one of them of necessity must be false.
Subsection 1623(e) permits a perjury conviction without compliance with the traditional two
witness rule. Some years ago, the Supreme Court declined to reverse an earlier ruling that
“"[t]he
general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not
enough to establish the falsity of the testimony of the accused set forth in the indictment.
”" The
two witness rule rests on a common law rather than a constitutional foundation and consequently
can be abrogated by statute which Congress has done in subsection 1623(e) without offending
constitutional principles.
In contrast to the other subsections of Section 1623, subsection 1623(d) offers a bar to
prosecution of those accused of perjury under the section. The defense is stated in fairly
straightforward terms,
“"[w]here in the same continuous court or grand jury proceeding in which a
declaration is made, the person making the declaration admits such declaration to be false, such
admission shall bar prosecution under this section if, at the time the admission is made, the
declaration has not substantially affected the proceeding, or it has not become manifest that such
falsity has been or will be exposed,
”" 18 U.S.C. 1623(d). Although phrased in different terms, the
courts seem to agree that repudiation of the false testimony must be specific and thorough.
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Perjury Under Federal Law: A Sketch of the Elements
Perjury Under 18 U.S.C. 1621
Section 1621 was
“"enacted in an effort to keep the course of justice free from the pollution of
perjury.
”" When Congress passed Section 1623, it did not repeal Section 1621 either explicitly or
by implication; where its proscriptions overlap with those of Section 1623, the government is free
to choose under which it will prosecute. In many instances, it affords greater protection than
Section 1623. It prohibits perjury before official proceedings—both judicial and nonjudicial.
Separated into its elements, the section provides that
:
(1)
(1)
I. Whoever having taken an oath
II. before a competent tribunal, officer, or person,
III. in any case in which a law of the United States authorizes an oath to be administered,
IV. a. that he will
i. testify,
ii. declare,
iii. depose, or
iv, certify truly, or
b. that any written
i. testimony,
ii. declaration,
iii. deposition, or
iv. certificate
by him subscribed, is true,
V. willfully and contrary to such oath
VI. a. states or
b. subscribes
any material matter which he does not believe to be true; or
(2)
(2)
I. Whoever in any
a. declaration,
b. certificate,
c. verification, or
d. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States Code,
II. willfully subscribes as true
III. any material matter
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Perjury Under Federal Law: A Sketch of the Elements
IV. which he does not believe to be true
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under
this title or imprisoned not more than five years, or both. This section is applicable whether
the statement or subscription is made within or without the United States 18 U.S.C. 1621
(enumeration added).
The courts generally favor the abbreviated encapsulation from United States v. Dunnigan
: "A : “A
witness testifying under oath or affirmation violates this section if she gives false testimony
concerning a material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.
”
"
Testimony that is literally true
, even if deceptively so, cannot be considered false for purposes of
a prosecution under Section 1621. On the other hand, under either Section 1621 or Section 1623
the false statement may consist of testimony that the witness does not remember or does not know
when the evidence clearly demonstrates that he does.
The test for materiality under Section 1621 is the same as it is under Section 1623—
“"whether the
false statement has a natural tendency to influence or [is] capable of influencing the decision
required to be made.
”
"
Conviction under Section 1621 requires not only that the defendant knew his statement was false
(“ ("which he does not believe to true
”"), but that his false statement is
“willfully”"willfully" presented. There is
but scant authority on precisely what
“willful”"willful" means in this context. The Supreme Court in dicta
has indicated that willful perjury consists of
“deliberate"deliberate material falsification under oath.
”" Other
courts have referred to it as acting with an
“"intent to deceive
”" or as acting
“"intentionally.
”
"
Subornation of Perjury
Section 1622 outlaws procuring or inducing another to commit perjury:
“"Whoever procures
another to commit any perjury is guilty of subornation of perjury, and shall be fined under this
title or imprisoned for not more than five years, or both,
”" 18 U.S.C. 1622. The crime consists of
two elements—(1) an act of perjury committed by another (2) induced or procured by the
defendant. Perjury under either Section 1621 or 1623 will support a conviction for subornation
under Section 1622, but commission of an act of perjury is a necessary element of subornation.
Although the authorities are exceptionally sparse, it appears that to suborn one must know that the
induced statement is false and that at least to suborn under Section 1621 one must also knowingly
and willfully induce.
False Statements (18 U.S.C. 1001)
The general false statement statute, 18 U.S.C. 1001, outlaws false statements, concealment, or
false documentation in any matter within the jurisdiction of any of the three branches of the
federal government, although it limits application in the case of Congress and the courts. More
specifically it states:
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Perjury Under Federal Law: A Sketch of the Elements
I. Except as otherwise provided in this section,
II. whoever, in any matter within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States,
III. knowingly and willfully—
IV. a. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
b. makes any materially false, fictitious, or fraudulent statement or representation; or
c. makes or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry; shall be fined under this title,
imprisoned not more than 5 years or, imprisoned not more than 8 years if the offense
involves international or domestic terrorism (as defined in section 2331) or if the matter
relates to an offense under chapter 109A (sexual abuse), 109B (sex offender registration),
110 (sexual exploitation), or 117 (transportation for illicit sexual purposes), or Section
1591 (sex trafficking).
The courts
’' description of the elements will ordinarily be limited to whichever of the forms of
misconduct—false statement, concealment, or false documentation—is implicated in the
particular case. In addition, Section 1001 imposes a limitation upon an offense that involves
matters within the jurisdiction of either the judicial or legislative branch:
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party
’'s counsel,
for statements, representations, writings or documents submitted by such party or counsel to
a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a)
shall apply only to—(1) administrative matters, including a claim for payment, a matter
related to the procurement of property or services, personnel or employment practices, or
support services, or a document required by law, rule, or regulation to be submitted to the
Congress or any office or officer within the legislative branch; or (2) any investigation or
review, conducted pursuant to the authority of any committee, subcommittee, commission or
office of the Congress, consistent with applicable rules of the House or Senate. 18 U.S.C.
1001(b),(c).
The defendant must establish his right to the benefits of Section 1001(b)'s judicial limitation exception. Section 1001(c) establishes additional elements for a false statement offense in a legislative context, which the government must establish.
A matter is within the jurisdiction of a federal entity when it involves a matter
“"confided to the
authority of a federal agency or department ... A department or agency has jurisdiction, in this
sense, when it has power to exercise authority in a particular situation. Understood in this way,
the phrase
‘'within the jurisdiction
’' merely differentiates the official, authorized functions of a
agency or department from matters peripheral to the business of that body.
”" Several courts have
held that the phrase contemplates coverage of false statements made to state, local, or private
entities but relating to matters that involve federal funds or regulations. Subsection 1001(b)
precludes application of prohibitions in Section 1001(a) to the statements, omissions, or
documentation presented to the court by a party in judicial proceedings. This includes statements
of indigency filed by a defendant seeking the appoint of counsel, or by a defendant for a
probation officer
’'s presentence report; but not statements made by one on supervised release to a
parole officer.
Although the offense can only be committed
“"knowingly and willfully,
”" the prosecution need not
prove that the defendant knew that his conduct involved a
“"matter within the jurisdiction
”" of a
federal entity nor that he intended to defraud a federal entity. Instead, the phrase
“"knowingly and
willfully” willfully" refers to the circumstances under which the defendant made his statement, omitted a
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Perjury Under Federal Law: A Sketch of the Elements
fact he was obliged to disclose, or included with his false documentation, i.e.,
“"that the defendant
knew that his statement was false when he made it or—which amounts in law to the same thing—
consciously disregarded or averted his eyes from the likely falsity.
”" Prosecution for a violation of
Section 1001 requires proof of materiality, as does conviction for perjury, and the standard is the
same: the statement must have a
“"natural tendency to influence, or be capable of influencing the
decisionmaking body to which it is addressed.
”" There is no need to show that the decision maker
was in fact diverted or influenced.
Conviction for false statements or false documentation under Section 1001 also requires that the
statements or documentation be false, that they not be true. And the same can be said of the
response to a question that is so fundamentally ambiguous that the defendant
’'s answer cannot be
said to be knowingly false. On the other hand, unlike the perjury provision of Section 1623,
“ "there is no safe harbor for recantation or correction of a prior false statement that violates
Section 1001.
”" Prosecutions under subsection 1001(a)(1) for concealment, rather than false
statement or false documentation, must also prove the existence of duty or legal obligation not to
conceal.
Perjury as a Sentencing Factor (U.S.S.G. §3C1.1)
Regardless of the offense for which an individual is convicted, his sentence may be enhanced as a
consequence of any obstruction of justice in the form of perjury or false statements for which he
is responsible, if committed during the course of the investigation, prosecution, or sentencing for
the offense of his conviction. The enhancement may result in an increase in his term of
imprisonment by as much as four years. The enhancement is the product of the influence of
§ Section 3C1.1 of the United States Sentencing Guidelines.
Section 3C1.1 instructs sentencing courts to add 2 offense levels in the case of an obstruction of
justice:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant
’s
's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the
offense level by 2 levels. U.S.S.G. §3C1.1.
The accompanying commentary explains that the section
“"is not intended to punish a defendant
for the exercise of a constitutional right.
”" More specifically, a
“defendant’"defendant's denial of guilt (other
than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a plea of guilty is not a basis for application
of this provision.
”" Early on, the Supreme Court made it clear that an individual
’'s sentence might
be enhanced under U.S.S.G
§Section 3C1.1, if he committed perjury during the course of his trial.
Moreover, the examples provided elsewhere in the section
’'s commentary and the cases applying
the section confirm that it reaches perjurious statements in a number of judicial contexts and to
false statements in a number of others.
The courts have concluded that an enhancement under the section is appropriate, for instance,
when a defendant has (1) given preposterous, perjurious testimony during his own trial; (2) given
perjurious testimony at his suppression hearing; (3) given perjurious, exculpatory testimony at the
separate trial of his girl friend; (4) made false statements in connection with a probation officer
’s
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Perjury Under Federal Law: A Sketch of the Elements
's bail report; (5) made false statements to the court in an attempt to change his guilty plea; (6) made
false statements to federal investigators;
(7) encouraged a witness to lie to the police; and (8and (7) made false statements to state investigators
relating to conduct for which the defendant was ultimately
conviction.
convicted.
When perjury provides the basis for an enhancement under the section, the court must find that
the defendant willfully testified falsely with respect to a material matter. When based upon a false
statement not under oath, the statement must still be material, that is, it must tend to influence or
affect the issue under determination. Even then, false identification at the time of arrest only
warrants a sentencing enhancement under the section when the deception significantly hinders the
investigation or prosecution.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
Congressional Research Service
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investigation or prosecution.